Comparison of National and EU Courts

The Court of Justice of the European Union (CJEU) ensures ‘that in the interpretation and application of the treaties, the law is observed’.[1] By contrast, national courts apply and enforce EU law and ensure effective remedies are available.[2]

Under a preliminary ruling procedure the CJEU responds to a question asked by national courts regarding the meaning of EU law, or the validity of a measure of EU law.[3] This involves interpreting EU law and is not an appeal. National courts decide whether to refer to the CJEU, in relation to the interpretation of treaties, or the validity and interpretation of acts of the Union institutions, bodies, offices or agencies.[4] To be admissible, there must be a genuine dispute between the parties, and the court will not respond to hypothetical questions.[5] Furthermore, the question must be relevant to the resolution of the substantive action in the national court.[6] The question must be articulated clearly for the CJEU to give a meaningful response and if the factual or legal context lacks clarity, with inadequate background information, then the court will refuse to give a ruling.[7]

Only national courts or tribunals can refer. In deciding whether a body constitutes a court or tribunal, a number of issues will be considered; primarily whether the body is established by law and whether it is permanent, also, whether its jurisdiction is compulsory and whether it has an inter partes procedure. Whether it applies rules of law and whether it is independent are further considerations. However, the CJEU has ruled that this criteria is not absolute.[8]

According to Article 267, a ‘court or tribunal may, if it considers… necessary to enable it to give a judgment, request the Court to give a ruling’.[9] This indicates that there is discretion as to whether they refer. However, it further states that where a case is ‘pending before a court or tribunal of a member state, against whose decisions there is no judicial remedy under national law, the court and tribunal shall bring the matter before the court’.[10] This refers to cases that are due to be heard at the highest national court, meaning there is no judicial remedy following its decisions. In these situations referral to the CJEU is obligatory.

Further guidance was provided in the CILFIT case.[11] Here, the court established that even if it is the highest court and there is no judicial remedy, there are certain circumstances where a referral is unnecessary. Where the question of law is not relevant and will not aid in the resolution of the dispute, then a referral is not obligatory. This also extends to when a previous CJEU ruling has adequately covered the point. This indicates a system of precedent. The application of EU law may be sufficiently obvious, meaning there is no scope for doubt as to how the question raised should be resolved and it is clear to the national judge what the interpretation should be (known as the acte clair principle). There is no doctrine as to what interpretation means and, as national courts are not always under obligation to refer, then there is the potential for the acte clair principle to be abused by national courts, resulting in a failure to refer. However, national courts must consider the matter equally obvious to other national courts and the CJEU, giving regard to the versions of the provision in different languages and considering the linguistic variations. National courts also consider the specific characteristics and the nature of EU law and the risk of divergences in judicial decisions within the EU.

Once a referral to the CJEU has been made then the procedure involves an advocate general, a written stage and, if necessary, an oral hearing. The court either settles a case by an order or deliberating on the basis of text drafted by a judge- rapporteur. This ensures uniformity of EU law and promotes judicial dialogue between the CJEU and national courts. A majority makes decisions and there is one collective judgment. This judgment does not only refer to a purpose driven interpretation of the relevant law but also a systemic understanding of the legal order of the EU; extending to the interpretation of all EU laws.[12] The referring court is bound by the interpretation held by the CJEU, when dealing with the matter in which the question was raised and where an identical question is asked.[13] However, more recent case law has involved national courts ignoring CJEU preliminary rulings due to the CJEU exceeding its jurisdiction, indicating that CJEU preliminary rulings are not always binding.[14]

Where there has been a failure to refer, then there has been a breach of constitution and the European Commission can bring the matter to the CJEU.[15] Furthermore, individuals who are part of the case may give rise to an action for damages from the state.[16]

In the Miller litigation, both the High Court and the Supreme Court had the opportunity to refer to the CJEU, however chose not to. Following the announcement that government intended to invoke Article 50 Treaty on European Union (TEU), Miller argued that parliamentary approval was required through a vote or debate before intention to invoke Article 50 could be declared. The Government argued that they could trigger Article 50 based on royal prerogative powers, so parliamentary consultation was unnecessary. After the High Court judgment it was suggested that the CJEU would have the final say on the use of Royal Prerogative. If interpretation of Article 50 were required then this would be a matter of EU law rather than UK law, as stipulated in Article 267 (TFEU). The issue of whether an Article 50 notice can be revoked if a Member State changes its mind may be an issue, which requires interpretation by the CJEU. However, this is a contentious area as many felt that a decision to trigger Article 50 as a national arrangement is not relevant to the CJEU.

The Miller litigation advanced to the Supreme Court. This is the court of last instance, so if there were any uncertainties regarding the interpretation of EU law, then a referral must be made to the CJEU unless it is ‘acte clair’. The issue of the irrevocability of article 50 was not raised in the Supreme Court, and it proceeded on the assumption of it being irrevocable. This failure to consider the irrevocability of Article 50 could be seen to be politically motivated, as a failure to identify a consensus on the irrevocability of Article 50 would have resulted in the Supreme Court, as the court of last instance, being obligated to refer to the CJEU. This would have been unpopular, as it could be seen that the EU was interfering in the way the UK’s exit. However, failure to consider the irrevocability of Article 50 and the absence of an Article 267 referral to the CJEU for interpretation has created legal uncertainty. The assumed irrevocability of Article 50 is a contentious issue, due to the strict interpretation of Article 50(3). There has been much academic debate surrounding the assumed irrevocability of Article 50, with Professor Closa drawing on international examples where the state is permitted a ‘cooling off period’ in which it is able to change its decision.[17] Additionally, Lord Kerr of Kinlochard has acknowledged the potential revocability of Article 50.[18] During the High Court hearing of the Miller litigation, there was much debate regarding whether a referral should be made to the CJEU. Some argued that a referral was “legally unavoidable” and that failure to refer would trigger “a risk of infringement of EU law by the UK”.[19] The opposing argument is that“…Parliament did not intend for EU rules, like the duty to make reference to the EU Court, to have any effect in UK law in matters of withdrawal from the EU”.[20]

Despite such arguments, the Supreme Court was under an obligation established in EU treaty law, which cannot be avoided through domestic procedural rules.[21] The revocability question was one of the most complex issues in the Miller litigation and was unresolved. It should have been unavoidable that the Supreme Court would make a referral to the CJEU, due to it being the court of last instance of a Member State, but also as the court’s judgment rested on the interpretation of EU law. Evidently, there has been a breach of EU law causing an environment of legal uncertainty. Any decisions made by Parliament resulting from this judgment are not as steadfast and certain as they would have been, had it been made clear whether triggering Article 50 would begin the inevitable course of ceasing to be a member of the EU, regardless of whether a deal upon exit had been reached or not. Although “the politics of the EU referendum result would be likely to rule out” the option of a CJEU referral being made, regarding the revocability of Article 50 would have avoided any legal uncertainty following the Supreme Court Judgment.[22]

Bibliography:

Table of case:

• Case 206/01 Arsenal Football Club v Mattew Reed [2003] 2 CMLE 25
• Case 246/80 Broekmeulen v Huisarts Registratie Commissie [1981] ECR 2311
• Case 18/93 Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783
• Case 458/93 Criminal Proceedings against Saddik [1995] ECR I-511
• Case 28-30/62 Da Costa [1963] ECR 31
• Case 104/79 Foglia v Novello (No.1) [1980] ECR 745
• Case 244/80 Foglia v Novello (No.2) [1981] ECR 3045
• Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239
• Case 343/90 Manuel José Lourenço Dias v Director da Alfâdega do Porto [1992] ECR I-4673
• Case 428/93 Monin Automobiles-Maison du Deux Roues [1994 ECR I-1707
• Case 283/81 Srl CILFIT v Ministry of Health [1982] ECR 3415
• Case 320-322/90 Telemarsicabruzzo v Circostel [1993] ECR I-393
• Case 83/91 Wienand Meilicke v ADV/ORGA AG [1992] ECR I-4871

Table of EU legislation:

• Consolidated Version of the Treaty on European Union [2008] OJ 115/13
• Consolidated Version of the Treaty on the Functioning of The European Union [2008] OJ 115/01

Secondary Materials:

• Sanchez- Graells A, ‘Why An Appeal Of The High Court Parliamentary Approval Brexit Judgment Will Bring The Litigation To The CJEU?’ (How to Crack a Nut: A blog on EU economic law, 3^rd November 2016)
• <http://www.howtocrackanut.com/blog/2016/11/3/why-an-appeal-of-the-high-court-parliamentary-brexit> accessed 21^st December 2017.
• Closa Montero C, ‘Is Article 50 Reversible? On Politics Beyond Legal Doctrine’ (Verfassungsblog on Matters Constitutional, 4^th January 2017) <http://verfassungsblog.de/is-article-50-reversible-on-politics-beyond-legal-doctrine/> accessed 20^th December 2017.
• Wyatt D Prof, ‘Lords EU Committee March 2016’ (Revised Transcript of Evidence Lords EU Committee, 8^th March 2016) <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/european-union-committee/the-process-of-leaving-the-eu/oral/30396.html> accessed 21^st December 2017.
• Campbell G, ‘Article 50 author Lord Kerr says Brexit not inevitable’ (BBC News, 3^rd November 2016) <http://www.bbc.co.uk/news/uk-scotland-scotland-politics-37852628>accessed 20^th December 2017.
• Poiares Maduro M, ‘Interpreting European Law: Judicial Adjudication in a Context of constitutional Pluralism’ [2007] 1(2) European Journal of Legal Studies 1-21.
• Barczentewicz M, ‘The Supreme Court Should Not Refer to the EU Court of Justice on Article 50’ (UK Constitutional Law Association, 11^th November 2016) <https://ukconstitutionallaw.org/2016/11/11/mikolaj-barczentewicz-the-supreme-court-should-not-refer-to-the-eu-court-of-justice-on-article-50/> accessed 21^st December 2017.
• Barczentewicz M, ‘UK Supreme Court Miller Judgment Seeks To Reassert Parliamentary Sovereignty, But It Does So In Breach Of EU Law And In Disservice To The UK Parliament’ (How to Crack a Nut: A blog on EU economic law, 24^th January 2017) <http://www.howtocrackanut.com/blog/2017/1/24/uk-supreme-court-miller-judgment-seeks-to-reassert-parliamentary-sovereignty-but-it-does-so-in-breach-of-eu-law-and-in-disservice-to-the-uk-parliament> accessed 21^st December 2017.

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[1] Consolidated Version of the Treaty on European Union [2008] OJ 115/27 Article 19(1).

[2] Consolidated Version of the Treaty on European Union [2008] OJ 115/18 Article 4(3) ; Article 19(1) (n 1).

[3] Consolidated Version of the Treaty on the Functioning of The European Union [2008] OJ 115/164 Article 267.

[4] Article 267 (1 a-b) (n 3).

[5] Case 104/79 Foglia v Novello (No.1) [1980] ECR 745; Case 244/80 Foglia v Novello (No.2) [1981] ECR 3045.

[6] Case 83/91 Wienand Meilicke v ADV/ORGA AG [1992] ECR I-4871; Case 18/93 Corsica Ferries Italia Srl v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783; Case 428/93 Monin Automobiles-Maison du Deux Roues [1994 ECR I-1707; Case 343/90 Manuel José Lourenço Dias v Director da Alfâdega do Porto [1992] ECR I-4673.

[7] Case 320-322/90 Telemarsicabruzzo v Circostel [1993] ECR I-393; Case 458/93 Criminal Proceedings against Saddik [1995] ECR I-511.

[8] Case 246/80 Broekmeulen v Huisarts Registratie Commissie [1981] ECR 2311.

[9] Article 267 (2) (n 3).

[10] Article 267 (3) (n 3).

[11] Case 283/81 Srl CILFIT v Ministry of Health [1982] ECR 3415.

[12] Miguel Poiares Maduro, ‘Interpreting European Law: Judicial Adjudication in a Context of constitutional Pluralism’ [2007] 1(2) European Journal of Legal Studies 1-21.

[13] Case 28-30/62 Da Costa [1963] ECR 31.

[14] Case 206/01 Arsenal Football Club v Mattew Reed [2003] 2 CMLE 25.

[15] Consolidated Version of the Treaty on the Functioning of The European Union [2008] OJ 115/160 Article 258.

[16] Case 224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239

[17] Carlos Closa Montero, ‘Is Article 50 Reversible? On Politics Beyond Legal Doctrine’ (Verfassungsblog on Matters Constitutional, 4^th January 2017) <http://verfassungsblog.de/is-article-50-reversible-on-politics-beyond-legal-doctrine/> accessed 20^th December 2017.

[18] Glenn Campbell, ‘Article 50 author Lord Kerr says Brexit not inevitable’ (BBC News, 3^rd November 2016) <http://www.bbc.co.uk/news/uk-scotland-scotland-politics-37852628>accessed 20^th December 2017.

[19] Albert Sanchez- Graells, ‘Why An Appeal Of The High Court Parliamentary Approval Brexit Judgment Will Bring The Litigation To The CJEU?’ (How to Crack a Nut: A blog on EU economic law, 3^rd November 2016)

<http://www.howtocrackanut.com/blog/2016/11/3/why-an-appeal-of-the-high-court-parliamentary-brexit> accessed 21^st December 2017.

[20] Mikołaj Barczentewicz, ‘The Supreme Court Should Not Refer to the EU Court of Justice on Article 50’ (UK Constitutional Law Association, 11^th November 2016) <https://ukconstitutionallaw.org/2016/11/11/mikolaj-barczentewicz-the-supreme-court-should-not-refer-to-the-eu-court-of-justice-on-article-50/> accessed 21^st December 2017.

[21] Mikołaj Barczentewicz, ‘UK Supreme Court Miller Judgment Seeks To Reassert Parliamentary Sovereignty, But It Does So In Breach Of EU Law And In Disservice To The UK Parliament’ (How to Crack a Nut: A blog on EU economic law, 24^th January 2017) <http://www.howtocrackanut.com/blog/2017/1/24/uk-supreme-court-miller-judgment-seeks-to-reassert-parliamentary-sovereignty-but-it-does-so-in-breach-of-eu-law-and-in-disservice-to-the-uk-parliament> accessed 21^st December 2017.

[22] Prof Derrick Wyatt, ‘Lords EU Committee March 2016’ (Revised Transcript of Evidence Lords EU Committee, 8^th March 2016) <http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/european-union-committee/the-process-of-leaving-the-eu/oral/30396.html> accessed 21^st December 2017.